Article II, Section 4, of the U.S. Constitution states, “The president, vice president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
It is likely in the coming weeks that the House of Representatives will pass articles of impeachment against President Trump. If that happens, the president will be tried in the Senate and, if convicted by two-thirds of that chamber, will be removed from office.
What did the Founders mean by “high crimes and misdemeanors”? Were they referring to violations of the criminal code? Not necessarily. The best source for the original intent of the Constitution’s framers is the Federalist Papers, written in 1787 and 1788.
Alexander Hamilton, addressing impeachment in Federalist No. 65, wrote that, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” (The capitalized “political” is part of the original text.) It will be up to the House, and then the Senate, to determine to what extent Trump’s misconduct violated the public trust.
If Trump is impeached, it will take 67 senators to convict and remove him. The Democrats have 49 senators (including two independents who caucus with their party). If all voted to convict the president, 18 Republican votes would still be needed. Although such a scenario is hard to imagine, it should be remembered that senators swore an oath to support and defend the Constitution, not the president.
However, many Republican members of the legislative branch are acting as if their job is to protect the leader of the executive branch. This is not what the Founders intended. They constructed our system of separation of power to divide the power of government against itself, to keep power from being concentrated in a limited number of hands. Each branch would be jealous of its position and thus would check possible abuses by the other branches.
As James Madison explained in Federalist No. 51, “those who administer each department” will be given “the necessary constitutional means and personal motives to resist encroachments of the others … . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
The necessity for Congress to have separate interests from the executive branch becomes more important with impeachment. The Founders understood the impeachment of a president would be a divisive political struggle. The Senate, the more deliberative body, was chosen to conduct the trial and was expected to be impartial in this sacred duty.
As Hamilton put it in Federalist No. 65: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”
Brene Brown, in her 2018 book on courageous leadership, “Dare to Lead,” writes that integrity is “choosing courage over comfort … it’s practicing your values, not just professing them.” America’s Founders would no doubt agree. I hope so will our U.S. senators—Republicans as well as Democrats—should they be put to the test.•
Atlas is a professor of political science and director of The Richard G. Lugar Franciscan Center for Global Studies at Marian University. Send comments to [email protected]
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